Amy Senser's defense pinned on 2010 ruling

Glen Stubbe, Dml - Star TribuneVilayphone Phanthacong, center, sister of Anousone "Ped" Phanthavong and other family members of victim left court Friday after Amy Senser made an appearance there today at the Hennepin County Public Safety building.

Amy Senser will base her defense against a criminal vehicular homicide charge on a recent Minnesota Supreme Court reversal of a man's conviction on the same charge because the state failed to prove that he knew he struck and killed a man changing a tire when he left the scene, her attorney said Friday.

The Supreme Court's 2010 decision in the case of Mohammed Al-Naseer effectively means that prosecutors must now prove criminal intent by drivers who leave the scene of accidents, said Eric Nelson, who is defending Senser.

Nelson has maintained that Senser did not know she hit Anousone Phanthavong, 38, on Aug. 23 as he filled his car with gas on the Interstate 94 ramp at Riverside Avenue just east of downtown. She left the scene.

Senser, who was charged Thursday with felony criminal vehicular homicide operation, appeared briefly in court on Friday.

"You basically have to know you committed a crime," Nelson said. "If you don't know you committed a crime, what obligation do you have to report it?"

2002 crash with similarities

Jerry Holt, Dml - Star Tribune

Flanked by her attorney Eric Nelson, left, and husband, Joe Senser, Amy Senser walked out of the Hennepin County Jail in downtown Minneapolis Thursday after posting bail.

Al-Naseer was convicted of criminal vehicular homicide and sentenced to four years in prison for leaving the scene of an accident in the June 2002 death of Kane Thomson, 26, of Minnetonka. Thomson was changing a tire on Hwy. 10 in Clay County when Al-Naseer struck and killed him without stopping.

When Al-Naseer was stopped by a Dilworth police officer 6 miles from the scene, his headlights were off and his right front tire was flat. He told police that he hit something but he didn't know what it was.

After his conviction and a lengthy appeals process, the Minnesota Supreme Court ruled that the state must prove "beyond a reasonable doubt, that at the time of the accident, Al-Naseer had actual knowledge of facts imposing a duty on him to stop; that is, the state had to prove Al-Naseer knew he had been in an accident with a person or a vehicle."

The state couldn't do that, the court reasoned, and threw out the conviction.

Freeman: Not surprised

Hennepin County Attorney Mike Freeman said the state must only prove three elements to charge Senser: that she was driving the car, that the car hit Phanthavong, killing him, and that she left the scene. It's not difficult to infer she knew she hit a person or a vehicle, and the state will be able to prove that, he said Friday.

"You don't knock a headlight out, and you can't have blood on the hood, and you don't cause heavy damage from leaving parts from a big, heavy SUV behind without knowing you hit something," Freeman said. "On the other hand, a defense has to have a hook or a handle, and it's not surprising he's reaching for this one. We have thought about that prior to charging and we charged anyway."

In the Clay County case, the court said the prosecutors' "reasonable inference" that Al-Naseer must have known he hit someone or something can be drawn from the circumstances of what happened. But it's also reasonable to infer that Al-Naseer would not have known he hit a person or a vehicle. His vehicle didn't react to either the noise or jolt of the impact, the ruling said.

"Even if these circumstances, as proved, establish that Al-Naseer may have known that there had been an accident, they do not establish that he necessarily would have known he had been in an accident with a person or a vehicle -- as opposed, for example, to hitting a deer, a road sign, or a pothole -- an element of the charged offense that the state was required to prove beyond a reasonable doubt," the opinion read.

Said Nelson, "You can draw the parallels from that case. Here's a guy who basically says 'I didn't know that I hit this person' and the Supreme Court said 'State, you've got to prove that the driver knew.'"

1-minute court hearing

Senser appeared in court Friday for less than a minute. She repeated her name and address before District Judge Patricia Karasov. Family members of Phanthavong, who had not seen Senser in person before, looked on. The family has filed a wrongful death lawsuit against the Sensers.

Afterward, Senser and her husband, ex-Vikings star Joe Senser, met with supporters outside the courtroom, one of whom wrapped Senser in a long embrace. The Sensers got into a waiting car and left without speaking to reporters.

She will make her next court appearance Oct. 18.

The Phanthavong family waited until after the Sensers left to leave the Public Safety Facility along with one of their attorneys, Jim Ballentine.

"I don't know how to describe it. I mean, I couldn't look her in the eye or anything like that," said Phanthavong's sister, Vilayphone Phanthavong. "I guess I was kind of upset."

She said the family members intend to be at all of Senser's court hearings.

"Hopefully we'll be at every single one of them," she said. "It's gonna hurt, but we need to know the result."

The charge against Senser offers little new insight into the events leading up to the incident. An accident reconstruction and other analysis of evidence have not been completed.

The day after the incident, Nelson directed investigators to the SUV, which they found in the Sensers' Edina home with blood on the hood. Nine days later, the Sensers sent a statement to the Minnesota State Patrol admitting Amy Senser was the driver. Since then, the Sensers have refused to speak with investigators, invoking their Fifth Amendment right to avoid self-incrimination.